Private Duty

In an era of heightened awareness, it’s more important than ever to make sure your agency’s sexual harassment policy is clear, effective and followed. Sexual harassment is covered in civil rights law under Title VII, and claims against harassers and the businesses that employ them can be brought via the Equal Employment Opportunity Commission (EEOC) and courts of law. EEOC monetary awards in such cases amounted to $40.7 million on 698 settlements in 2016, but even a single lawsuit can run into the millions. The wave of high-profile accusations in show business and politics that has culminated in the #MeToo movement has made many businesses eager to improve their sexual harassment policies, procedures and training.

“In California, sexual harassment training for managers at businesses with 50-plus employees is mandatory,” says attorney Beth A. Schroeder, who specializes in labor and employment law at Raines Feldman in Los Angeles and also does on-site training.

But lately rather than simply requiring a two-hour online video, some clients are asking for a live class, she adds. “And more people are asking that we speak to the rank and file, not just the managers,” she says. “Also, organizations with fewer than 50 employees are asking for training.”

Most states’ laws are less rigorous than California’s but, whether or not they’re required by law, agencies should make sure their policies and procedures will protect them from charges that they fostered harassment, protected harassers or made reporting difficult for complainants. An agency that doesn’t act to prevent and identify harassers may be held vicariously liable for the harassment and subject to financial penalties.

Paperwork: Call the lawyer

Agencies are accustomed to written policies and procedures as a matter of compliance in areas such as HIPAA.

But you should have them for sexual harassment as well, says Rick Hackman, chair of the employment law group at Saxton & Stump in Lancaster, Pa.

In light of the decision, industry experts said, agencies that don’t currently have an arbitration agreement in place should consider implementing one.

“With the advent of the internet, anyone can Google and download policy templates,” such as those at the website of the Society for Human Resource Management (SHRM), Hackman says.

“But I advise you [to] have an attorney at least look it over. There are changes in the law all the time and in emphasis. For example, at the EEOC, there’s been more focus lately on the employer’s obligation to timely respond to harassment as well as to prevent harassment.”

In addition to writing it down, though, you have to make sure your procedures and policies are implemented.

With the upcoming vetting of Brett Kavanaugh for the soon-to-be vacant seat of Justice Anthony Kennedy on the U.S. Supreme Court, home care agencies soon may again have a pro-business ally.

That’s important, in part, because the 2018-19 Supreme Court term is shaping up to be the year of arbitration.

The upcoming docket features three Federal Arbitration Act-related cases. This shows that the justices have an interest in clearing up confusion relating to the act, says Leah Farmer, an associate in Chicago law firm Franczek Radelet, P.C.

Attorney John Swinney, also of Franczek Radelet, says that although it’s impossible to determine where Kavanaugh stands on arbitration because of a dearth of history of his rulings from the D.C. Circuit on these cases, the likelihood that Kavanaugh will be pro-employer may hint at how he’ll rule on these upcoming disputes.

Do this after a complaint is made

Begin an investigation immediately. “EEOC may say, ‘OK, under the circumstances, this isn’t harassment — but you waited two weeks to investigate’” and fault you for that, Hackman says.

Write down everything. And get your subjects to sign off on their statements — even if the statement is that they don’t want to make a statement.

“Let’s take the uncooperative alleged victim who ‘doesn’t want to get anyone in trouble,’” Hackman says. “Even in such cases, you still have an obligation under the law because maybe something happens later and then that person can say, ‘I told them, but they did nothing.’ So tell them that you’ll keep things as confidential as possible but, if they don’t want to help, you need that in writing. They have to acknowledge they said that. That way you can show EEOC or the judge, ‘We tried, but the plaintiff said this.’”

And watch your spelling and grammar. “There’s nothing worse in a deposition than misspelled reports,” says Hackman. “People look at that and think, ‘this person can’t take two seconds to do spell check; why would I think they’d been thorough’” about taking the report?

Go beyond the basics of training to encourage a culture of compliance. • “Some [trainers] take out their pointers and go to the board and talk about definitions of sexual harassment,” Schroeder says. “But that’s not what it’s about.”

#MeToo “made me throw a lot of stuff out and start over,” she says. “I used to do a light and breezy program, but now it’s more of a candid conversation about what bothers people. … I have them speak up: ‘Tell this person that they look nice,’ I tell them. ‘And now tell them that they look hot. What’s the difference?’”

The difference often is a lack of respect, Schroeder says. “What often drives people to lawyers is not bad jokes or the hand on the shoulder; most women, frankly, put up with that a lot,” she says. “What drives suits is the feeling of disrespect. … When someone belittles an employee, yells at them, does something that gets them to cry — that’s what upsets them. It doesn’t mean the other stuff is acceptable, but the reality is, the bullying drives it.” — Roy Edroso (redroso@decisionhealth.com)

Editor’s note: Learn how to navigate the many legal and compliance issues facing the home care industry today during a dedicated track at the 21st Annual Private Duty National Conference & Expo Nov. 12-14 at the Aria Resort & Casino in Las Vegas.

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